I want to note up front that I am skipping Mitsvah 172, the obligation to listen to a prophet, since I earlier suggested that Rambam actually meant to include Mitsvah 151. It has long struck me that our issues in observing Mitsvah 175 are among those that prove our unworthiness to see the arrival of Mashiah in the near future. The mitsvah, to back up that perhaps bold statement, calls upon us to follow the majority of sages/judges who decide an issue.

At the technical level of deciding specific disputes, probably all or most of us freely accept that position; there is no particular reason a majority of judges cannot decide lawsuits among disputants. When two Jews go to a beit din for resolution of a financial dispute (or if), it is not the majority rule system that they will resist. The aspect that I suspect would raise greater difficulties is that majority rule applies to interpretation as well. In this country, the Supreme Court decides central legal issues based on majority rule, which then becomes the law of the land, at least until the Court decides to reconsider the issue. The Torah envisions a similar situation, at least as Rambam lays it out in this mitsvah and in the beginning of Hilkhot Mamrim.

In that system, all disputes— including those of how to interpret Torah law— were resolved by the Sanhedrin as a court of last resort. Although there were several layers before reaching the top, lasting disputes would at the very least be resolved by the highest court, and the original questioners would be answered. That, at least, is how it worked in the time of the Sanhedrin. Since Rambam includes the mitsvah in our list (while he leaves out, for example, the obligation to listen to the Sanhedrin and to appoint local batei din), he sees it as still somehow relevant in our times.

That would seem to mean that we should nowadays also be following the majority of rabbinic authorities on any question of what the Torah says about an issue. For us, this is obviously problematic, since the majority of rabbinic authorities in the late 19th and early 20th centuries almost certainly rejected Zionism as then practiced. Quite possibly, the majority of rabbinic authorities today rejects Religious Zionism and other basic tenets of Modern or Centrist Orthodoxy. How do we justify ignoring that majority, when the Torah says to follow them?

Thankfully, for those of us who follow these views, there is ample room—independent of this issue, so that we are not making up a heter for our own purposes—not to be ruled by a seeming majority of scholars. First, the Sefer haHinukh (mitsvah 78) points out that the question of following the majority only applies to scholars of equal stature and rank. As the Minhat Hinukh notes, the gemara suggests that Beit Shammai were allowed to ignore the rulings of Beit Hillel because they, Beit Shammai, were greater scholars. One way to avoid being forced to follow the majority, then, is to claim that one is following scholars of greater stature, who therefore need not be bound by the majority of those around them.

The Minhat Hinukh also notes those who only apply this rule when the scholars in question have fully debated their views in person. Just reading various writings and tabulating the positions taken by scholars operating independently is not enough to develop a majority. For our purposes, unless a body of scholars of the highest stature (or stature comparable to those rabbanim we follow) fully argues a point, we have no obligation to follow the majority view.

I also suspect that rabbis who were going to give their decision the force of Torah law (by dint of the principle of aharei rabim) would be careful to distinguish decisions that are absolute Torah law— you can’t eat pig— from those that represent their policy recommendations (which would be obligatory if stated as a gezerah, but perhaps not otherwise). Even if a majority of rabbinic scholars, for example, thought that it was proper for students to start learning gemara in 1st grade, that would not make it a rule until they either claimed that Torah law required this, or that they were legislating it as a rabbinic ordinance.

How to apply the obligation to follow the majority is thus fairly complicated and in most cases can be avoided. We follow rabbis whose judgement we trust, presumably assuming that they (or their teachers) are either on a high enough level that stand against others, or that we can ignore a seeming majority since they have not convened to argue the issues fully. If we think about the original ideal, however, I think we will quickly see how hard a principle it would be for us to apply regularly. Perhaps another hint of how important this issue is might come from a mitsvah Rambam does not include in this list, the obligation "to appoint judges and officers who will force us to perform the mitsvot of the Torah, and return those who are straying from the true path against their will, and command us to do good and return from evil," and so on. In Rambam’s vision, the religion also has a strong top-down component in maintaining observance among its adherents. There, too, I wonder at our ability to live within such a system given our current devotion to personal conscience and freedom of choice.

What, to put the question more clearly, would we be willing to forego simply because a majority of the leading rabbis decided that that was absolutely the way to go? How, I wonder, would we react if a local va`ad contacted us about some behavior of ours, warning us that it was unacceptable and needed to be reigned in? Having watched many such organizations work, I doubt my own confidence in their abilities, and thus count myself among those not yet ready for the kind of trust in others’ judgement so vital to really applying these rules in practice. Yet I write those words with the sadness of one who sees how close we have come , and yet how far we are, from the Torah society for which we all yearn. Shabbat Shalom.